Examining witnesses in the Court of Appeal

Today's decision in R. v. Sihota, 2009 ONCA 770 deals with the highly unusual circumstance of a witness being examined on a pending appeal.  The specific issue dealt with fresh evidence.

 

[12]         The power to order the attendance of a witness to be examined on a pending appeal is conferred by s. 683(1)(b) of the Criminal Code:

Powers of court of appeal

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

...

(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose.

[13]         The powers conferred by s. 683 are "designed to maximize protection against wrongful convictions": R. v. Trotta (2004), 23 C.R. (6^th) 261 at para. 24. These powers were discussed by Gonthier J. in R. v. Levesque, [2000] 2 S.C.R. 487, at para. 25:

Determining the probative value of fresh evidence on appeal may be a difficult task, since the evidence has not been put to the test of cross-examination or rebuttal at trial.  Some courts of appeal express reluctance when they are asked to admit fresh evidence containing information which the adverse party has not been able to verify.

…

In my view, where fresh evidence is challenged, or where its probative value is in dispute, it is desirable that it be tested before being admitted, primarily for two reasons:  (1) this facilitates the determination of the probative value of the fresh evidence, and (2) this is fairer to the party objecting to the admissions of the fresh evidence.  This "testing" can be done in a number of ways…Courts of appeal may also…allow cross-examination of a witness or submission of expert evidence in response to fresh expert evidence.  In other words, they can do everything that the powers conferred on them by s. 683 of the Criminal Code permit them to do.

[14]         It will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal.  The interests of complainants who have already testified and been cross-examined at trial must be carefully considered and respected.  They should not be forced to repeat the stress and trauma of the legal process unless clearly required by the interests of justice.  The scope of any examination should be carefully circumscribed and confined to what is fresh evidence.  The appellant should not be allowed to rehash ground covered at trial or to proceed on a speculative basis or "fishing expedition" to uncover fresh evidence not yet identified, but must show - to paraphrase the test for ordering Crown disclosure set out in Trotta  at para. 25 - that there is some reasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.